*1 error. Benjamin Martin, Jr., R. Hicks,
Harrison & сontra. the verdict P. J. does not sustain This record Gardner, attempted who Strickland, $200. witness defense in his positively plaintiff, amount stated owed the establish testimony plaintiff; much he owed that he did not know how about moving; he believed it was he lost his records in $200. The showed detail status evidence $778.53. The carried amount was account, verdict, entitled to a proving burden of this amount and was supported A according is not to this record. verdict which permitted any an unlawful verdict and evidence is cannot contentions of stand. is no sustain the There evidence to pleas. in their several sureties
Judgment Carlisle, concur. JJ., reversed. Townsend and (two cases). STARR v. UNIVERSITY 36124, 36125. EMORY May 1956. Decided *2 Hutchins, Hugh H. in error. Rogers, plaintiffs H. J.
James Thomas contra. Branch, Branch, Jr., A. B. (a) the are that J.
Townsend, premises for the provide failed safe and suitable or patient walk paying hospital, plaintiff, (b) defendant, give warning condition; of the unsafe notice knowledge premises, failed defective condition (c) same; defendant failed to to warn the as adequate illumination so to disclose the condi- provide as unsafe covering (d) keep tile floor floor; failed to tion (e) unslippery condition; placed the tree safe and so Christmas (f) as the beds to cast aisle; placed so as to cast shadows on the surrounding them; (g) the curtains so on the shadows aisle spot; cast across this placed table aisle as to shadows (h) ceiling lights illuminate failed or otherwise to turn the aisle. premises exercising duty is one of
While the of the owner of ordinary degree which constitutes invitees, for its of care vary aсcording may care under the circumstances private- “A capacity known former. age or the invitee to the placed treatment their hospital patients in which are patients and physicians, and undertakes to care for the supervise duty exercise such and look after is under the them, protecting patient looking reasonable care after and through patient’s condition, which is known its looking agents charged duty after and servants with the University supervising require.” Emory patient, may affirmed, Shadburn, (1) Ga. E.S. v. Gardner, *3 Stansfield laboring person S. E. is axiomatic that even not It disability hospitals kept be expect under a the- would floors of slippery patients are clear of the areas where ac- substances many walking customed to because of the so fact that disability. It persons using are in fact was such areas under accordingly portion of negligent allow a for the to- polished in a be hospital floor in area ward to between beds highly dangerous become wax buffed as to slick so an area could be ascertained-“with- over where this condition not stooping making down a minute and out close to the floor and inspection.” negligent defendant’s em- close It was also spill a ployees, acting employment, to within the course of their liquid portion area, combined with “which, of this said dangerous floor, made the floor more slick condition of said proper hazardous.” Under these failure to circumstances, might neg- jury illumination be found to constitute also injuries. ligence entering proximate- into the cause of question patient remaining plaintiff, whether the enough hospital in the course dis- but well lacking ordinary charged therefrom, exercise of was so preclude recovery. safety for her own as to alleges apparent; the slick condition of the floor was not spilling liquid and this was apparent, not due day cloudy, fact a Christmas tree on one side deep of the aisle and a table and chairs on the other cast slippery area; over color, shadows the floor was of a mottled burning. the defendant failed ceiling lights to have its This frequently allegations has held similar as to slickness of a resulting wax, from the use either alone or combined with other poor lighting, conditions such be sufficient to as state a Bryant cause of action. H. v. S. & 76 Ga. Kress App. 2) (46 (1, 600); Haverty S. E. 2d Furniture v. Co. Jewell, App. 2) (144 38 Ga. (1, 46); Caroway City Atlanta, (2) (70 126), S. E. 2d and cases therein every cited. While must in last action analysis be decided particular facts, its own these cases con tain closely facts more related alleged to the situation than here do relied upon by those the plaintiff in error, such Mattox v. Atlanta Enterprises, Inc., S. E. 2d where a woman descended flight a dark a theater and stairs tripped over carpeting some torn greasy on which a substance had been allowed to accumulate. That decision held that plaintiff was not exercise of care for her own safety petition because alleged stairway dark could safely it, descend but she never theless continued knowing to descend while No to be unsafe. such appear in here under cоnsideration. There nothing whatsoever, appears, so far as to warn the any possible might defect exist on the floor between aisles of the in her pa beds ward she was a where tient, or that would be unsafe for her area. to traverse the Accordingly, *4 affirmatively does not reveal that she failed to exercise ordinary care for her own in safety, either not detecting slippery substance the floor stepping on there before proceeding-along or in floor after becoming aware that it was any manner unsafe. Neither is this controlled on its Holman v. facts American Automobile Ins. Ga. 454, E. 2d cited the defendant in In employee error. that case an flight leading descended a cafeteria steps employees’ stepped step last onto the waxed slipped as she on the fact floor of area. That decision is based the restaurant allegation familiar with “there is no that was not that kept, and no. ordinarily and how it the cafeteria unnecessary 'An lights. as excessive and contention to insufficient wiped up amount wax on which should have the floor obvious; patent and removed’ have been must allegation there are full present case, not.” it was lights; there is no alle- complete allegations as to insufficient affirmatively gation are wax, excess and there statements as to place patent obvious, and that showing that the slick not polished appear floor did not highly because of the shadows dealing based a line of be such. The Holman case is on cases patеnt group. not defects; this case does fall within are demurrer assignments rulings special error The on the it is obvious argued, what hereinabove been said not but from has sufficient, are paragraphs objected as conclusions remaining allegations fact when considered with the Saliba, criticism. Saliba petition, to withstand this out, the (9) (42 pointed above since, S. E. 2d as Also knowledge duty patients in view its of a toward its considering and material physical condition relevant their circumstances, para- owing by under the the care the defendant terms, duty general setting graph petition, 24 of the out such ground it was a conclu- subject criticism to. correctly legal duty on did not state sion that it the defendant. sustaining special
The trial court erred de- petition. murrers to the Quillian
Judgment J., Carlisle, revеrsed. C. Felton, and Nich- ols, J., concur. dissents. JJ., Gardner, P. firm J., dissenting. opinion P. writer is
Gardner, affirmed, many due case should be decisions of this question Supreme before us. this court Court think majority of the whole court otherwise. Because setting am my my stand, belief in I the entire case sincere out dissenting opinion. I in a set more in detail than is usual pleadings forth well the evidence. as as This exceptions case on a bill of filed is before this court
869 sustaining demurrer to the result the trial of (hereinafter Mrs. Starr plaintiff. Mamie called (hereinafter plaintiff) against Emory University filed her suit defendant) County Superior Court of DeKalb called personal patient at the defendant’s injuries while sustained hospital. hospital plaintiff alleged she went to the of the de- that 21, purpose 1953,
fendant on or about December placed kidney ailment, examined and for a under observation having Floyd, had in her and Pitt- Guy, attendance Doctors man, assigned and that she a bed in what as was known ward 6, west, No. or room No. which about 40 feet in 651, as length having approximately 20 to 25 feet 8 width, hos- pital room; beds located on each side ward or of said that there walking was an space along approxi- aisle or the foot of beds, said mately width; 10 feet that the door or entrance to said 6, ward No. west, was located the north end of room and at said purpose that for privacy west, 6, ward No. said said defendant had curtains, installed individual suspended from wires pipes fastened to small height, about 8 feet in which in turn were anchored ward, whereby patient to the floor of said each in each bed pull could enclosing curtains around said beds thus such patient; that went' said on December 21, paying 1953, patient, and was therefore an invitee of defendant; said days pre- said defendant had one to three vious said 23, December 1953, placed library a small table said aisle at the foot 12, approxi- of beds which table was mately 10 northerly plaintiff, feet from the bed the south side of said table were two and on the north chairs, side of said table two other chairs.
Said alleged further days pre- some or three that, two vious said 1953, placed December 23, the defendant had Christmas aisle, tree in said and that the branches trunk of said tree aisle, particularly cast shadows across the floor of said said aisle between and that the beds library said table located betweеn 12 in beds said aisle also cast feet; shadows on the floor said aisle to 5 6, paved entire floor said ward No. or west, floored type asphalt with a tile, alternating tan and tan blackish appearance; very drab dull
squares, gave a Guy, physician, Dr. personal had been advised gO' could tehe early morning December began dressing for such that she Lithonia; back to home in *6 the cur- having pulled trip m., a. after first around 10:30 o’clock after privacy; afford 14, that, tain around her said bed No. to said completed she walked over to plaintiff dressing, had 11 and with a library between beds 12 to chat table in said aisle table, of said lady sitting wdio in a chair the south side was lady 10 minutes, talked for about 5 to and after had with said approximately m., 10:45 a. and leave, o’clock she turned to at nоrtherly direction; that, in about table started around said northeasterly point feet from said she arrived at or 5 time causing table, 12, slipped, of bed her left foot and at the foot No. violently heavily plaintiff and to floor of said ward to fall left force fracture the neck of her west, No. such as to with continue for the femur; suffered and will to suffer that she has injury; around defendant, her life said remainder of a", through porters, mopped and buffed one of its m., o’clock highly causing the floor to become slick ward, the floor said area because dangerous and between beds and but chairs, and table, of the shadows cast across said aisle said curtains, as bed and Christmas as well drawn the fact tree, lights ward, ceiling light burning in other said cloudy on and that was said date at said the fact sоmewhat hour, ascertain, stooping could down plaintiff without and making inspection, and a minute close close the floor to very polished and highly that the same was said floor had dangerous; time she slippery that on said date at said wearing slippers, heels, Oxford with medium open-toe roughed up wear; from street said soles of which were paying patient, and therefore plaintiff entered said as pro- defendant to exercise care to duty it was the slippery vide and free of condition. maintain safe floors whereby alleged that, it was amended original the condition of the addition to known defendant, whose names are not floor, employees of said well known plaintiff defendant, whose names are Lothe but near the m., 10 o’clock a. liquid on said floor about spilled some spilling of the northeasterly table; side of said described fallen, liquid plaintiff until after she was unknown to dangerous condition and that combined with said slick this, impossi- hazardous; more floor, of said made the floor that it liquid presence ble have discovered the of said floor, said on said area cast across because of the shadows ceiling that none of the curtains, drawn bed further fact lights in burning said ward said time. at petition charged
Said the defendant disregarded provide its duty maintain safe suitable provide and that premises, the defendant failed to and maintain adequate floor; illumination in and around described unsafe allowing placed said tree in said aisle as Christmas so cast shadows across the floor where others similarly walk; allowing situated had to on said curtains beds to cast shadows across said floors where the had to walk; placing said table said floor so as cast shadows *7 plaintiff across said failing floor where the had to walk; to turn ceiling the lights on four plain- to illuminate said floor that the so tiff and similarly others situated could have ascertained that said highly polished been and the highly slip- that same was pery and slick.
The defendant demurred generally petition to the amended. trial The sustained court demurrer and peti- the dismissed the plaintiff tion. excepted The judgment the to on said general demurrer. point principal
The on which court sustained the the petition demurrer plaintiff is that the showed that the failed to ordinary exercise care for her safety own and was therefore not entitled recоver. In plaintiff order to decide whether the did or did ordinary not exercise care for her safety, own I will discuss allegations the petition and allege the the failure to certain things.
The petition averments of plaintiff the show the went into hospital the December purpose ex- the amined placed under observation; spent that she all day of the of December 22nd in hospital; the that her physician early morning advised her of December 23rd that she could (It return her home. will be noted that she was still the fell.) The hospital slipped m. when as late as 10:45 a. “3 to 5 feet.” petition alleges cast shadows that the table tree away from petition plaintiff’s The bed was 10 feet shows that finishing dressing and bed; patient, the table and after that the her bed necessary out, other check walked 10 feet from details petition alleges point slipped and fell. to the where she Since table, her point slipped from that the where she feet bed was feet from and the shadows were cast table, affirmatively appear that she within feet, it does not allegation that Moreover, there is no the shadows when she fell. walk for her own she could not see She took this the shadows. she took pleasure according allegations petition, for, petition alleges patient. The chat” with another stroll “to n gave very appearance. dull asphalt tile on the floor it a plain- allege petition It will be noted that did not contrary tiff had no dull of the tile. On the notice of the color other having day full of two there one short against pleader days—construing petition strongly more n —thisleaves no my mind had noticed or that she doubt the exercise of care could have noticed the color allegations tile. contrary, the absence of to the patient—therefore perambulatory shows stay. walking she had been tile the duration of same petition alleges mopped attendant buffed minutes before m., the floor at 10 o’clock a. allege plaintiff slipped fell, not that the does but petition alleges did know this. ex- injury. years age when she received her With perience years, and in absence *8 petition I consider mean that she knew or should contrary, the buffing might floor leave the polishing known a have caution on her was indicated. slick, therefore plaintiff the curtains face drew pеtition shows on its the alleges a herself, time this as around her bed but at the same knew recovery. alleged that the for It defendant reason is not allege plaintiff petition drew curtains. The does not the the extinguished that the defend- lights whom were how or the known care reasonable should knew or the exercise of ant needed. This burning lights or that lights were not necessarily had, being in the knowledge plaintiff which the exercising greater degree of care for room, and had she been lights safety own could have on the if needed. turned alleged floor, the which was to the substance on amended As petition plaintiff, the substance was visible to the if the way being put had no on notice plaintiff, defendant likewise the Construing strongly the of the the more substance. against language plain “it plеader, impossible for the liquid presence tiff to have discovered the said the area” because the shadows across drawn bed cur floor, cast tains, and lack of all make light, impossible combined to it plaintiff for the to discover the then would likewise liquid, impossible have been for the to have discovered the liquid my petition, by floor. In opinion the allegations, allege, subject the failure shown hereinabove, as for plaintiff demurrer. Counsel cites and relies Bryant App. v. S. H. Kress & support plaintiff’s In Judge contentions. that case Chief Sutton, speaking prima court, stated facie that a case was made for plaintiff judge granting and that the trial erred in In nonsuit. that case the evidence shows that the substance which was on the floor visible. stated, I have heretoforе As impossible the instant case it was states that see There Bryau$ substance. are other facts in the case differ which bar, entiate it case is case at therefore not authority a reversal case. for of this
In Haverty Furniture v. Jewell, Co. 38 Ga. seems plaintiff that the facts showed had the. store period pay short of time in order to bill, and therefore had opportunity not had an familiar to be surroundings, did at bar. the case involved in had day instant case had a and a days time on short two other with the color floor, familiar lighting other obstacles, and she had minutes in to realize that mopped the floor had been buffed, the exercise ordi nary safety own she could have avoided injury herself. Caroway City Atlanta, 792, which counsel plaintiff cites, was in the Atlanta Municipal *9 thin of wax had been slipped spot at a where a coat
Airpоrt liberally applied properly and not distributed. point in the in in before the court
The decision relation to the Kress holding Bryant in v. S. H. stant case was based v. Haverty Jewell, supra, & Furniture Co. which supra, and cases are distinguished I hereinabove. Other have discussed rendered, some cited also a basis the decision any I rate that case showed which will discuss hereinafter. At so sufficiently from facts the instant case facts different here. that it is not a basis a reversal v. Saliba, and McWhorter cited Saliba v. Counsel support 2d contention Settle, 247), Ga. 334 demurrer if infer pleading subject special that the is not may legitimately be drawn special stated in the demurrer ence made special pleaded facts or exhibits attached not special demurrers there were pleadings. they points special as the nor cover the same of law similar did In Savannah Electric & Power demurrers in the instant case. 87) find Russo, Co. 71 Ga. 2d we S. ] by petition of action and could not attacked set forth cause special demurrers general bar, demurrer. Unlike the case at plaintiff’s general con made amendment and Mrere allegations. In the supported by attacked sufficient clusions special urged my opinion that the demurrers instant it is case, was amended are meri originally and renewed after torious. the defendant on Ford v. A.
Counsel for cites relies (1) (54 E. is Lynch 2d wherein it Corp., allegations ap in this case stated: “From plaintiff’s injuries were the failure pears that the result of his own walking upon the marble floor of the exercise soapy water, at lobby while it was covered with the time hotel question; question and in such circumstances the place court negligence properly decided as matter of law. is judge sustaining did err in Accordingly, trial not dismissing action.” petition In that demurrer to the soapy alleged that the water on the marble floor of it was case lobby transparent and translucent and that it hotel body opinion stated that visible. not neces transparent soapy water translucent notwithstanding petition. sarily invisible say also was familiar with The court went on to *10 injuries lobby plaintiff’s and that were the result of the floor the walking care in the failure on marble his to exercise own soapy water. The court while it was covered with stated question that, circumstances, under the of such is by a matter properly law, decided thе court as and that the of judge sustaining general did err in the demurrer trial to the petition. Lebby in that case cited v. Realty court Atlanta (103 Corp., App. 433); Ogain Ga. E. Imperial 25 369 S. v. Cafe, (103 App. 594); Ga. v. Jones, App. 25 415 S. E. Hendricks 28 Ga. (111 (120 81); Avary E. v. Anderson, App. 335 S. 31 Ga. 402 v. 683); National Co. Patrick, App. Bellas-Hess 49 Ga. (175 Drug (35 v. 255); Story, App. Lane Stores 72 Ga. 472); v. American S. E. 2d Holman Automobile Ins. Housing Authority City
Ga. and v. 454, Atlanta, Banks App. Emory 79 Ga. S. E. 2d University v. Shadburn, affirmed 180 Ga. stated: was hospital patients placed “A in private by which are for treatment physicians, patients their and undertakes to care for the after under supervise them, duty and and look to exercise looking care in and protecting patient such reasonable after patient’s condition, hospital which is known through charged agents duty its and servants looking after may supervising patient, require.” and In that case will patient was delirious, be noted this condition was hospital, hospital and that the charge known to the authorities in knowledge patient having these facts should have patient might anticipated that endeavor to leave by jumping means as out of the some window. This case went jury jury and the to trial before resolved the case favor of upheld plaintiff. judgment This court verdict negligent court on basis that the defendant trial in not caring delirious, nervous, clearly patient. insane inapplicable-to Clearly case is the case at bar because pleading case that the incapaci instant any manner. tated Housing Authority consider Banks City
I will now Lynch A. Atlanta, Ford v. S. supra, which relied the con- Corp., supra. Banks In the case the stаted injured plaintiff to be had existed caused the ditions which and therefore the condition days prior occurrence, two fall and that her been obvious should have injuries exercise ordi- the result her own failure to nary care the circumstances. under Greyhound Depot,
In Bessman v. Bios ap muddy using E. 2d fell while wet depot. held proach entrance of bus The court defendant’s muddy wet and conditions that she should have observed the author of approach walking was the said and that thereon Appeals the trial mishap. her own ruled that Court amended judge demurrer properly sustained dismissing the case. *11 Lebby Realty supra, In Atlanta this Corp., v. headnote by said: cause stated court “No of action was slipping falling on the injury and walking going from hallway, upon of he was when which which, in the defendant’s office and building, the officeof a tenant office, prep- while was covered with water he was tenant’s danger- aratory mopping it, and rendered slick and thus was appearing any culpable upon; ous to walk it was defendant, alleged dan- of ger and could not of not obvious exercise plaintiff.” been discovered Mfg.
This in Biederman 29 Co., court held v. Montezuma App. (116 225): allegation Ga. S. E. “There 589 (the plaintiff) must be assumed that the contrary, it servant ordinary intelligence, laboring he was of and that under no disability physical incapable rendered him defect or appreciating knowing dangers and incident the situation Georgia employment. Thomas v. Granite 140 Ga. Co., to his (79 (as be con- Construing it must E. strued) strongly against plaintiff, appears most thus slip fall, which caused him to and аnd defects the floor injuries sues, and ob- patent resulted in the which he mas- equal defendant, his vious, that he means knowing thereof. No is alleged, cause of action ter, properly sus therefore defendant was general demurrer of the Atlanta, 118 Ga. v. 3131; Dozier (1910), Code Civil tained. § (45 429); S. E. Wilkins, 118 Ga. Ludd v. (45 306); E.S. Ogain Im (101 v. 759); 24 Ga. Day Graybill, v. 594).” (103 S. E. perial Cafe, App. 347, 348 Co., Hotel 42 Ga. Henry Grady Holloman v. In surface slick, smooth involving a in a case E.S. “We are held: the court hotel, stairway of the defendant’s marble notice may judicial take opinion that this construct from which to proper material marble is fact that for that centuries use stairway. It has the sanction nothing in texture There its purposes. other architectural dangerous; therefore, inherently and, unsafe slick renders it any petition in this case that suggestion in the аnd there is no steps render them deposited upon the foreign substance that admits marble is a stone dangerous. It is true slick naturally slick polished, even when it is not polish, but, dangerous, have indicated.” as we 460) supra, (p. Ins. Holman v. American Automobile App. 402 Avary Anderson, “In court said: speaking court, Justice of this 683), Judge Bell, now Chief Appeals, the Court said: Whether innkeeper, when her guest of the
tenant, boarder, or
(as
be,
against
it must
strongly
most
construed
grease upon
the floor
appears
demurrer),
injuries
fall and suffer the
slip,
caused
bathroom, which
though
de-
obvious,
that,
even
patent and
for, was
sued
in the bathroom
allowing
to exist
fendant,
such condition
*12
plain-
negligent
alleged, the
plaintiff’s
was
use,
furnished
the
exercise
consequences
by the
avoided the
thereof
tiff
have
cоuld
general
notwithstanding the
ordinary care; and
is so
of
this
allegation
further
proper care on her
and the
part,
of
averment
greasy substance
existence of the
did not know of the
she
that
not
and that
did
fell,
where she
she
particular place
at
the
there;
seeing
knowing it
of
or
was
had no means
see and
pleaded.
negatived by
particular
facts
these averments
see; but if this
could
affirmatively appears It
anything
of
in
absence
presumed,
be
would
so,
were not
In the
disability
regard.’
free from
this
contrary,
be
to
Avary
general
properly
held
case, the court
that a
demurrer was
(51
v. McNally,
sustained.
In Crown Cotton. Mills
879 by and the many been announced this court which have times it can allegations petition, the instant Appeals, Court of they law that are sufficient to state as matter of said are inclined negligence? We action actionable cause of years a mature injured party person, The think so. employed requirements civil as a civilian under service age, Presum- junior Government. typist by clerk United States contrary. good being allegation to the ably vision, there no she post exchange during hour at the The occurred her lunch accident place by employer, at which she was cafeteria, provided allegation that she was not familiar to eat. Thеre no invited is ordinarily kept, cafeteria and with the floor how it was 'An un- lights. insufficient excessive and and no contention as to necessary amount of wax on the floor should patent obvious; have been wiped up removed’ must allegation the floor no It not shown that was not. is being alle- waxed; color after and there remained same by ordinary care would have been gation that the exercise of dangerous. floor Her opportunity discover that the unable to certainly equal and know the condition to see employer; allegation and there that she even so is no that of at detect that was looked the floor was unable to much as specific necessarily Such facts must from waxed. slick in- pleader conclusion of the she was over thе mere prevail any negligence Jones, jured part’. on her Hendricks v. 'without Corp., 81); Lebby Realty E. v. Atlanta Banks Sons supra; Schofield’s petition being insufficient state a cause petition- for actionable
of action properly demurrer sustained employer, er’s this reason.” diligent analysis has been in a comparative
Counsel of the facts compared in that case as instant case. facts may facts are almost on all So the bench and bar fours. comparative benefit analysis, this I hereinbelow show counsel’s interpretation in the Holman case immedi- the facts followed ately case, in each the facts the instant shown instance accu- italics. I have checked facts and find that counsel has rately quote them and I therefore cоunsel’s brief: stated person years Injured party
Injured party age. a mature person years age. mature *14 of allegation good contrary.
Presumably
vision,
no
she
allegation
Presumably
good
contrary.
she had
vision. No-
building
allegation
was not familiar with
and how
No
allegation
usually
it was
maintained. No
she was not familiar
usually
building
and how1it
maintained.
patent
An
wax
floor
have been
excessive amount of
on the
must
allegation
not.
excessive
obvious.
No-
amount-
No-
that was
alleged,
wax
but
condition
must have
the waxed
of
floor
of
patent
allegation
and obvious.
it was not.
No-
allegation
the dan-
No
she would have been unable to discover
exercising ordinary care. No
gerous
condition of the floor
allegation
floor
even so much
looked
that she
at
allega-
unable to
it was
waxed. No
detect that
slick
tion she would have been
to discover
condition
unable
of
contrary
but
the-
care,
exercise
on the
floor
impossible
alleged
plaintiff
amended
that “it was
for
presence
liquid
area.
.
.”
to have discovered
said
on said
allegations
a cause
were insufKcientto state
general
negligence
for
and the
demurrer was
of action
actionable
properly sustained. The
the instant case
fail
state a cause
action
actionable
and the defend-
for
contends n general
properly
demurrer was
sustained.
ant
(57
App.
Hill v.
841
S. E.
Co.,
840,
In
Davison-Paxon
80 Ga.
“As be
Townsend, speaking
court,
said:
680), Judge
2d
tenant,
servant,
and owner and
tween landlord and
master
customer,
injuries upon
property
one
who- sustains
least
other,
recover,
order
elements at
must show
two-
part
owner,
viz.,
ignorance
dan
exist,
fault on the
(Ann.);
ger
L. R. 136
the invitee. See 58 A.
(39
Holman
Co.,
v. American
Ins.
In Wilkinson v. 77 Ga. Inc., rug slipping, a regarding personal-injury 2d case throw knowledge that such said: “It a matter of common this court slip was bound rugs tendency and we think case, qualities rugs.” the instant to know of such such full allegation did not have knowl- to show Obviously polished of the floor. edge condition of the waxed and waxed should indicate that it could shiny surface of a floor polished danger is a is common Walking slick. on a and the in the instant case knowledge people to all Ogain position recognize danger. See also peculiarly such (103 594); McMul Imperial Cafe, App. v. Ga. Kroger 420), and Moore Co., lan v. S. E. 2d Kroger v. E. 2d 87 Ga. Quil-
In Mattox Atlanta Enterprises, App. 847, Judge lian, speaking court, brought said: “Mrs. Cleo Mattox damages against an Enterprises, аction Atlanta Inc., Fulton Superior Court. The suit alleged negligence was based Enterprises Inc., insulting personal injuries Atlanta in certain plaintiff. filed peti- demurrer to the *15 ground petition tion on that the did not the set forth cause sustained, action. The demurrer was the was dismissed plaintiff excepted. the petition alleged "The that substance the defendant corpora- engaged tion was in the business, July amusement and on 1950, operated motion-picture City theatre in of Atlanta' the known Roxy Theatre; as the and that the defendant’s theatre operated profit charged was for a public the for admission. alleged: further plaintiff Griffin, That the resided Georgia, employed and was Registrar of Spalding High School at Griffin; plaintiff brought that the high-school three to children purpose Atlanta for the attending of the children pic- a motion performance ture Roxy Theatre; plaintiff at the the that had custody the children on trip the to Atlanta; plaintiff that the purchased tickets for Theatre; the students to Roxy attend the although that, plaintiff the did attend the performance, arranged children; return the p. for that m. at about 11:15 for the plaintiff returned children and informed an usher her mission, and he invited purpose her enter for the looking children; that, being unable children, to locate the plaintiff returned to the they who informed her usher, that were in room; the ladies’ rest the usher go that directed her to a.stairway turn down as she then left entered lobby, stairway to follow another down into the room; rest that capable theatre lighted, ceiling was but there lights dim wall lights on, lights burning were two and the them; stairway over that the lobby, in the main shades light though on stair- lighted, a wall even there was was not not; plaintiff that the use, was way which could been in but stairway stairway; that the approached entrance dark, plaintiff cautiously stepped forward down the stairs and the room; that feeling way advanced the ladies’ rest her as she carpet protruded up at the head of the stair- stairway step, a of one and way immediately above the first distance that inches, place; one-half a hole in it at there was place twenty long; carpet step had a torn inches the first also step place carpet a torn on the second that there was knowledge of twenty-four the defendant had long; inches manager reporting the had been these because assistant facts manager 1949; large since condition to the slippery grease slimy, slick, and sub- amount of or some other carpet; impossible stance on darkness; that, plain- when the see this substance because of the step steps, go tiff made a forward to down the the heel -of caught carpet and her other foot came contact shoe greasy spot, which caused the lose balance stairway permanent and fall receive down entire at invi- painful injuries; the theatre premises owner and was for the benefit of tation necessary defendant; invite it was custody parents persons had the of chil- of children other who theatre, parents to enter the because would not allow dren *16 for they unless enter the the children to attend were allowed to purpose accompanying children from the theatre. alleged also: That the notice of
“The stairway; negligent and that the defendant was the defects in the to remain on the in allowing greasy stairway, in the substance failing plaintiff presence grease, keep- the of the the to warn allowing protruding, the darkness, in a state of ing the theatre creating stairway, carpet and remain on the torn, defective peril plaintiff caused the to fall. hidden properly construed most petition, of the “The averments pleader, aware strongly against the show that the de- 'dark’, .safely could not stairway and that she
883 ‘feeling it; that, nevertheless, steps scencl she continued down way personal as she and certain advanced’, fell, sustained injuries. rulings App. Under the v. 28 Jones, of Hendricks Ga. (111 21 Flournoy Mfg. 335 S. E. v. American Hat 81); Co., App. (94 Ga. Lebby Realty E. v. 835); Corp., S. Atlanta (103 Avary App. Ga. 433); E. v. Anderson, Ga. 683); Realty Frierson v. Mutual hold we are constrained to that the danger her, ordinary was obvious to exercise care for her safety, being injured. own could have avoided There she fore, precluded recovery because of her own negligence. Although agree this does writer not that the correct rule jurisdictions is stated in decisions other cited, while hold a jury question is as whether or not dark strange stairway, walk down we are bound to follow precedents court.” this It will noted that facts peculiarly case are all-fours with the facts the instant language reasoning apt case. Also the in that case are appropriаte applied the instant case. reasonable inference from the peti- alleged
tion that the defects were such as could have been seen the exercise of safety, own alleged injury was the result of the failure on degree to exercise such care for her own n ' safety. my opinion according my viewpoint not it is necessary pass assignment any me except of error toas judgment overruling general of the trial court in demur- majority opinion rers. But judgment since the reverses general special trial court on both demurrers, I think it proper judgment to state that the majority opinion reversing judgment this court trial court on special as well demurrers as the demurrers is erroneous. I hold special as to the demurrers trial likewise did judgment overruling err in special its demurrers. THE
36173. FOWLER STATE.